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August 1, 2011 | by  | in Features |
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The Viability Of Justice

Recent changes to the legal aid system involving the extension of the Public Defence Service and the implementation of the Legal Services Act have drawn a mixed response. Some have praised the measures as streamlining the system and reducing unnecessary costs while others believe the alterations could compromise fundamental aspects of the justice system. Salient feature writer, Selina Powell, investigates the history and implications of these reforms.

The Legal Services Act and the Bazley Report

At the second reading of the Legal Services Bill, Justice Minister, Simon Power, acknowledged the historical importance of legal aid within New Zealand, “Legal aid was first provided in New Zealand in 1912. It was based on the principles that legal assistance be provided to persons of insufficient means where that was desirable in the interests of justice. These principles remain features of this legislation, but the bill fundamentally reforms the legal aid system to ensure its viability for a second century of service.”

Measures which have now been passed into law through the Legal Services Act to enhance the ‘viability’ of legal aid include disestablishing the Legal Services Authority, which administers legal aid, and transferring its functions to the Ministry of Justice. The Legal Aid Review Panel is replaced by a Tribunal which receives resources and administrative support from the Ministry of Justice. The Government also plans to expand the Public Defence Service, taking on up to 50 per cent of legal aid cases in some areas.

Speaking at the Third Reading of the Bill, Power contended that the measures, “will help restore public confidence in the legal aid system, and will lead to better service for vulnerable people who rely on the legal aid system.”

The changes come in the wake of a 2009 report by Dame Margaret Bazley, which was highly critical of the current legal aid system and the practice of some lawyers within it. Power believes that these reforms will address the flaws raised by that report. This is evident in the legislation, with all of the major changes aligning to recommendations made by Bazley.

The Bazley report is positive about the role that legal aid plays within the legal system. The report notes that legal aid is, “essential to the operation of the justice system: its effect extends far beyond the individual who is represented by a legal aid lawyer. By enabling people to access lawyers, the legal aid system keeps the wheels of justice turning and helps to maintain trust and confidence in the justice system.”

However, Bazley also highlights some major areas for improvement including reducing the number of lawyers exploiting the legal aid system and acting improperly within it. As an example of the contentious claims made by the report, it is stated that up to 80 per cent of lawyers practising in the Manukau District Court were ‘gaming’ the legal aid system.

In a recommendation that has been echoed by Power, Bazley proposed giving the legal profession a time limit within which to improve their conduct. If quality issues were not resolved within this period, Bazley suggested creating an independent regulator of lawyers.

The report emphasises the need to focus on the provision of legal aid for Maori and Pacific communities. Given the disproportionate representation of Maori as both victims and offenders within the justice system, Bazley believes that it is essential that the legal aid system is accessible to Maori. In a statement repeated by Hone Harawira, then a Maori Party MP, at the first reading of the Bill, Bazley notes, “If the legal system fails Maori, then it fails altogether”.

Evidence-Based Changes?

The wisdom of using recommendations in the Bazley report as a basis for legislative change has been criticised by several commentators. The report itself concedes that its findings are partly based on anecdotal evidence. In an article published in the New Zealand Law Journal, Kim Economides from the University of Otago characterised the report as offering “both diagnosis and prescription for the ills afflicting the system based largely on anecdote and an experienced civil servant’s nose for reform”.

Labour MP Charles Chauvel argued at the Third Reading of the Bill that it is “questionable whether an entire set of reforms, such as those we are seeing in this House today, can be grounded in the Bazley report, because of the anecdotal nature of the findings, and because of some of the extreme language in that report.”

The Greens expressed particular concern about the scrapping of the Legal Aid Review Panel. MP Gareth Hughes objected to this measure being implemented on the basis of a few “snide comments” in the Bazley report, without concrete evidence of the Panel’s poor performance.

Hughes also took issue with the recommendation that the “new tribunal should have an explicit requirement to have regard to both access to justice considerations and responsible expenditure of public monies. To this end, the Chair of the new tribunal should not be a lawyer.” Hughes observed that this part of the report was indicative of the underlying tone of the review, “that lawyers cannot be trusted with public monies”.

Maintaining Independence

A concern at the heart of the debate about legal aid changes is whether lawyers will retain their independence from government as employees of the enhanced Public Defence Service. A second key issue is whether independence will be maintained in legal aid decisions with the disestablishment of the Legal Services Agency. Legal Aid decisions will be made by the new Legal Services Commissioner, an independent statutory officer, who is an employee of the Secretary for Justice.

The Public Defence Service employs lawyers to represent clients on legal aid matters. Some lawyers have questioned whether PDS lawyers will retain the same degree of independence as lawyers in private practice. Criminal Defence lawyer Noel Sainsbury has proposed the possibility of strike action in reaction to the extension of the Public Defence Service which he perceives as having the potential to undermine the justice system.

Speaking to the Dominion Post, Southern Public Defender Sandy Baigent rejected the contention that PDS lawyers would be less independent that private legal aid lawyers. Baigent highlights the point that both private and public legal aid lawyers receive government funding, noting that “the only difference is we get a salary and they [private lawyers] get paid after putting in an invoice.”

While Baigent argues that the source of an individual’s income does not affect their independence, there are those who disagree. Caroline Sawyer, Ethics Lecturer for the Victoria University Law Faculty, suggested that the view can be that, “if you have salaried staff, you can control them and there are people who take advantage of that.” Sawyer notes that in practice the PDS system and lawyers may perform very well, but, “It’s not so much about what people do as about the frameworks that you set up, that invite, or allow, or don’t send a message that you prohibit, bad behaviour.”

To use an example of the sway of pay cheques in another context, legendary street style photographer, and Harvard drop-out, Bill Cunningham, has been known to refuse payment for his services on many occasions, explaining, “I never take their money, then they can tell you what to do.” The sprightly 80-year-old, who travels by bike in a street sweeper’s jacket taking photographs amongst the wilderness of New York fashion observes, “Money is the cheapest thing, liberty, freedom, is the most expensive thing.”

Although questions have been raised about the independence of PDS lawyers, it should be noted that the government is not proposing a public monopoly on the provision of legal aid services. A spokesperson for the Justice Minister informed Salient that the government has no plans to increase the case load of the PDS above 50 per cent of legal aid cases.

“Private lawyers still form an integral part of the legal aid system and the success of the system is dependent on good-quality private lawyers.”
Concerns have also been raised about the new office of Legal Services Commissioner. In its submission on the Legal Services Bill, the New Zealand Law Society contended that the Commissioner would have limited independence because the role would be subject to direction by the Ministry for Justice.

However, the Departmental report on the Bill by the Ministry of Justice notes that while the Commissioner is an employee of the Secretary for Justice, the Commissioner can only be disciplined for employment matters and cannot be restricted in exercising his or her independent functions. A spokesperson for the Minister for Justice notes that these independent functions include the allocation of cases, oversight of the conduct of legal proceedings and the management of the performance of the Public Defence Service.

Maori Land considered in Legal Aid Applications

While Bazley’s report encouraged changes that would benefit Maori within the legal aid system, the Maori party was one of two parties to oppose the Legal Services Bill, expressing concern over aspects of the changes.

A key aspect of the Maori party’s opposition to the Legal Services Bill is that the legislation allows for income and equity of Maori land to be taken into account when calculating eligibility for legal aid. The policy assumes individual ownership of Maori Land which Te Ururoa Flavell, MP for the Maori party, notes is a non-Maori view of the relationship between people and land. Flavell spoke of this relationship in his speech at the Third Reading of the Bill, noting, “e kore ngā Māori e hoko i tēnei mea ko te whenua i te mea, ehara nōna tērā whenua, he whenua nō ngā mātua, nō ngā tūpuna”, (land is never sold by Māori people, because it does not belong to them, but rather to the elders and the ancestors).

The effect of this provision is that fewer Maori will have access to legal aid, despite the disproportionate number of Maori within the justice system requiring this type of assistance.

Choice of Lawyer

The Legal Services Agency recently removed the right of defendants in lower-level legal aid cases to choose their legal representation. A Spokesperson for the Justice Minister notes that this policy, “allows cases to be distributed across all legal aid providers equally (removing distortions in case loads) and contributes to greater efficiency in resolving cases, for both clients and the courts.”

The Minister argued in favour of the policy in an interview with the Timaru Herald in April, “When you go to a hospital you don’t choose your doctor. When you go to school you don’t choose your teacher. If the state is paying for the lawyer, as long as they are of sufficient standard and quality, then they should be fine.”

In contrast, Sawyer argues that a defendant should always have the right to choose their lawyer, even if not having that choice makes little difference in low-level cases. Sawyer also contends that there is a distinction between the Government allocating the services of doctors and teachers and the government selecting an individual’s lawyer, “because law is so close to the operation of Government, in a way that doctors and teachers aren’t.”
Sawyer notes that if a defendant does not have a choice about their lawyer, and feels that their lawyer is performing badly, this can undermine the confidence of the individual in the justice system.

“If there is a spread of a belief that everything is stitched up against you, the spread of that belief is very corrosive generally. There is a great deal to be said for having a legal system that people have faith in. If they really seriously don’t trust the judicial system…it’s almost like losing the point of obeying the rules at all.”

A Fair Price

A key theme of reform discussions relating to the legal aid sector is balancing the expenditure of public money with access to justice and the right of individuals to a fair trial. Legal aid ‘blowout’ is a phrase which frequently appears in the media. David Garrett, Act party MP, has gone as far as advocating for legal aid to be ‘rationed’.

However, Sawyer is of the opinion that, “there are some things worth paying for, and the machinery of justice is one of them.” *

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